THE IDEA OF PROPERTY: AN INTRODUCTORY EMPIRICAL ASSESSMENT.

• Author: Babie, Paul T.

The idea of property refers to the social imaginary of property, the informal or everyday ideas that people hold when they use or interact with resources, things, or items of social wealth. This article advances scholarship in property theory by studying this idea which, we argue, constitutes a set of norms and practices and provides insight into many pressing social and political problems. To study the idea of property, we employ an ethnographic mode of research, entering the social domain to conduct semi-structured interviews with a range of people living in Adelaide. This research reveals that people perceive that property provides them with choice and freedom over the use and allocation of scarce resources. Thus, choice (rather than responsibility or duties) represents the dominant understanding of property held by the respondents interviewed in this study.

1. INTRODUCTION II. "ELITE" III. "COMMON" A 'Idea' B. Becomes Law IV. ANALYSIS A. Conceptual Framework B. Methodology C. Research Questions D. Research Design E. Data Collection F. Data Analysis V. FINDINGS A. Relativism and a Tripartite Schema of Property B. Typology of Property 1. Choice-Freedom: Individualist-Absolutist 2. Choice-Freedom: Web of Social Relationships VI. CONCLUDING REFLECTIONS A. The "Idea" B. Law Reform APPENDIX 1: PSYCHOLOGY OF LAW PILOT PROJECT INTERVIEW INSTRUMENT I. INTRODUCTION

   The popular 1997 Australian film The Castle (1) depicts the Kerrigans, a family forced to fight the compulsory acquisition of their home to allow for expansion of a local airport. Ostensibly about familial bonds and community, the film also provides a stark depiction of the place of property in the human psyche For many people, their home is more than an exchangeable commodity; it is a place of memories to which are felt a great sense of attachment and belonging. (2)

   Yet the Kerrigan's fight is beyond the comprehension of real property law and the officials who represent it with whom they interact. The Australian Constitution seemingly empowers the government to acquire land for its exchangeable value, not for its value to the owner. (3) For the officials portrayed in the movie, that is the end of the matter. Moreover, the values that Daryl Kerrigan, the family patriarch, articulates cannot be reduced to monetary sums and are thus rendered unreal or unimportant. In one memorable scene, Kerrigan is asked by a judge whether his appeal is really about the amount of compensation his family has been offered. Thinking outside the strict bounds of positive law, Kerrigan responds:

   They're judging a place by what it looks like, if it doesn't have a pool, a classy front, or a big garden it's not worth saving. But it's not a house, it's a home. People who love each other. Memories. Family. But that doesn't mean as much as a big ... driveway. (4) In this scene, the Kerrigan's idea of property collides head-on with property as found in the positive law. The law cannot accommodate his highly physical and familial sense of property and the narrative force of the film is propelled by this mutual lack of understanding. The film also reveals that thinking like a lawyer requires what Nicole Graham calls "a suspension of belief in physical reality, a denial of experience." (5) The law facilitates a culture of property articulated in terms of abstract symbols, certificates of title, conflicting interests rather than places, homes and biography. (6)

   The Castle dramatizes the idea of property in a humorous way. But it turns out that life really does imitate art; one frequently finds that fictionalized drama played out in the real world. The Australian Federal Court decision in French v. Gray, (7) for instance, involved a challenge to government action which not only captured public attention, but also resulted in significant economic, social and psychological consequences for the parties involved. Between 2005 and 2013, Graham French fought a federal government attempt to acquire compulsorily his farm in South Australia. Graham French is a real-life Daryl Kerrigan While French won the case, as did Kerrigan, the former "lamented the time and money lost in the long process." (8)

   And sometimes the drama produces tragic consequences. In 2014 Glendon Turner, an environmental officer for the NSW government, was killed by a farmer near the wheat belt town of Moree. When, shortly afterward, Ian Turnbull was charged with Turner's murder, it emerged that "Turnbull had been involved in a legal dispute with the [NSW] Office of Environment and Heritage over illegal land clearing" in the Croppa Creek area (9) Because they limit the individual freedom of landowners to make choices about "their" land, "vegetation laws have been controversial in several Australian States for over a decade." (10) In commenting on the shooting, Moree Mayor Katrina Humphries said "I am not overly surprised that something dreadful like this has happened." (11)

   These examples of the fictional Daryl Kerrigan and the real-world Graham French and Ian Turnbull reveal the importance of property to its holder. We know that property is at the center of each case, but the concept and theorizing about it fail to assist us in comprehending the events. The fact that property rights are not absolute and that they exist alongside competing interests is not relevant. To understand the motivation of Daryl Kerrigan, or Graham French, or Ian Turnbull, we need to examine and understand what seemed to be operating in the minds of the protagonists. In short, each example prompts a question: why might anyone in Daryl Kerrigan's, or Graham French's, or in Ian Turnbull's position react as they did, challenging the government's attempt to take or otherwise deprive them of their land, their property?

   Our answer is that underlying each challenge is a deeply personal yet widely held belief that governments, as Graham French said "shouldn't be able to rip people's lands off them for no good reason ... it's just wrong." (12) This belief, that property means that something cannot be taken by others, and perhaps especially by others, motivates a person to say about one's things that they are "mine, I paid for them, they belong to me, they're for my use" and so they "can't be taken from me" (Participant C01_P07, Pilot Study). (13) Put simply, '[xx] is my property' or 'this is mine'. Or, even more simply, it can be summed up by this advertisement by a South Australian State government home financing organization:

   Based upon earlier work, (14) we call the understanding captured by these various phrases the 'idea of property', and we argue that it is the primary way people understand what property is.

   The purpose of this article is to advance property theory by studying the idea of property. As we will discuss, the idea of property has several different names in the legal literature. However, each approach is united by a common concern for the everyday beliefs that people hold and use to negotiate their own rules and devise their own norms and practices. These informal ideas, we argue, constitute a form of law and provide insight into many pressing social and political problems.

   To unpack the idea of property, the article contains six parts. Part II describes how an elite group of people, theorists, understand the concept of property. This theory, which is grounded predominantly in philosophy and political science, is abstract and conceptual in nature. Influenced by liberal/neoliberal theory, it also focuses on justifications for property and tends to ignore the ways real people conceptualize or understand property. Part III explains why it is important to understand the disjuncture between elite theorizing about and the idea of property. Drawing on legal scholars such as Eugen Ehrlich and Duncan Kennedy we also theorize the idea of property as a kind of unofficial law which arises from people's everyday perspectives and social interactions. Part IV describes the methodology we have developed so as to undertake our own empirical research into the idea of property. Part V presents the findings of our research. Part VI concludes.

2. "ELITE"

   A disjuncture exists between how theorists and the great majority of people understand what property is. In order to outline that difference, we consider how 'elite' theorists understand property. That allows us to establish a definition of the idea of property which, building upon earlier work, (15) we argue, is how real people understand property.

   For most of the twentieth century and into the twenty-first, liberal/neo-liberal thought dominates all theorizing about the content of the concept of property. (16) Born of classical liberal thought, and nurtured by a disparate neo-liberal justificatory movement over the last fifty years, (17) the liberal/neo-liberal theory posits individualism and absolutism as lying at the core of whatever property is: a bundle of rights, the three most important of which are use, exclusivity of use and alienability of goods and resources. This has been called the 'liberal triad' of rights, and it forms the core of what property is taken to mean in its modern, liberal/neo-liberal form. (18)

   Theorists who subscribe to the liberal/neo-liberal stance use three, often overlapping, claims to support the individualist and absolutist liberal triad of rights. Thus, there are those who argue that the liberal triad ought to achieve justice and liberty (19) or protect individual rights. (20) In contrast to liberty, justice and rights are those who use utilitarian or consequentialist approaches to compare the costs and benefits of different definitions and allocations of rights and entitlements. (21) Finally, social relations theorists study the way that property structures social relations and access to resources. (22)

   Liberal/neo-liberal thought not only provides the content of property, it also justifies its existence, offering six different approaches: first possession; (23)...